Protection of Indiana Bats

Nature of Case:
The Animal Welfare Institute and its co-plaintiffs brought claims against Beech Ridge Energy, LLC and its parent company for past and future takes of endangered Indiana bats as a result of the construction, turbine erection, and operation activities of an industrial wind facility without an incidental take permit, arguing that such activities constitute violations of the Endangered Species Act.

Status:
On December 8, 2009, the Honorable Roger Titus found in favor of the Animal Welfare Institute and its co-plaintiffs ruling that the defendant's industrial wind energy facility will kill and injure endangered Indiana bats in violation of the Endangered Species Act. Judge Titus enjoined the facility's project from moving forward in certain aspects of construction and operation unless and until the defendants obtained an incidental take permit. Subsequently, in January 2010, the parties entered into an agreement to provide additional protections to Indiana bats while allowing some elements of the industrial wind energy project to move forward and to begin producing renewable power.

Protection of Indiana Bats: Background

In June 2009, the Animal Welfare Institute and its co-plaintiffs filed a federal lawsuit in U.S. District Court for the District of Maryland claiming that a massive industrial wind power facility to be constructed and operated in West Virginia would kill and injure Indiana bats in violation of the Endangered Species Act (ESA). The lawsuit was the first known of its kind challenging an industrial wind energy project on environmental grounds.

The wind power facility at issue, known as the Beech Ridge project, was to include 124 wind turbines along more than 20 miles of Appalachian mountain ridgelines, an area near caves where the highly endangered Indiana bat is known to live. AWI and its co-plaintiffs claimed that the presence of bats at or near the project site could expose them to severe harm from collisions with the turbine blades and rapid changes in air pressure caused by the moving turbines. They argued that such harm would "take" the bats in violation of Section 9 of the ESA.

Section 9 of the ESA makes it unlawful for any person to "take any [endangered] species within the United States." 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).

The two critical issues in the case were (a) whether, by a preponderance of evidence, it was proved that Indiana bats are present at the project site, and (b) whether the project was reasonably certain to imminently harm, kill or wound Indiana bats in violation of Section 9 of the ESA. Following the conclusion of the trial, which included testimony from leading experts in their respective fields, the court found that there is a "virtual certainty" that Indiana bats are present on the project site during the spring, summer and fall months. (They are not likely to be present during the winter, when they hibernate.) The court came to this conclusion based on evidence of nearby hibernacula, the physical characteristics of the project site, and the behavioral traits of Indiana bats. The court also found in favor of the plaintiffs on the issue of harm. It was not swayed by defendants' contention that Indiana bats do not fly at the height of turbine blades and instead agreed with the testimony provided by plaintiffs' experts. It ruled that "like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded or killed imminently by the Beech Ridge Project in violation of [Section] 9 of the ESA, during the spring, summer, and fall."

In light of its findings, the court enjoined the operation of all wind turbines in the area except during the winter season, when Indiana bats hibernate and held that if the defendants wanted to continue with the project, they would have to apply for an incidental take permit in accordance with Section 1539(a)(1)(B) of the ESA. Subsequently, the parties entered into agreement whereby some turbine activity - not believed to pose a threat to the bats - could take place while defendants sought an Incidental Take Permit for the project. The agreement allows for some turbine construction and operation to go forward - while at the same time ameliorating the project’s impact on Indiana bats as defendants pursue a permit.